Federal Prison—American Hellhole by Cynthia Johnston

I wish I was a headlight on a north-bound train I’d shine my light through the cool Colorado rain.

~ “I Know You Rider,” Grateful Dead classic by “Traditional”

The
Colorado sun was baking hot. The ground was still muddy from
thunderstorms that flooded Four Mile Canyon the night before. Clumps of
dirt and dung exploded into clouds of dust as I stroked the horse’s
flank with a stiff metal brush. Glittering dung-dust settled on my face
and arms as one word kept rolling around in my head:

Scarmazzo.

Luke Scarmazzo. What he wouldn’t give for a cloud of sunlit dust. Luke
Scarmazzo. Locked away in a cold, cramped cage, Luke Scarmazzo is
serving over twenty years in federal prison for operating a medical
marijuana dispensary in compliance with California law. That law, the
Compassionate Use Act of 1996 (also known as Proposition 215) allows
patients with a valid doctor’s recommendation, as well as their primary
caregivers, to possess and grow marijuana for personal medical use.
Subsequent bills further clarified the intent of its authors—specifically,
to allow patients to associate collectively to cultivate marijuana, as
well as to provide state ID cards for patients and caregivers.

Prop 215 passed with 55.6 percent of the vote—it
was the will of the people of California that patients be allowed to
use marijuana to ease their suffering. But the will of the people has
long since been subverted by over-zealous officials with their own
agendas, people like former L.A. District Attorney Steve Cooley, who has
insisted since 2009 that the Compassionate Use Act means no money can
change hands for medical marijuana. In Cooley’s book, all medical
marijuana sales are illegal—as
in, felonies. All he has to do is send an undercover cop with a fake ID
and a legitimate doctor’s recommendation to make a few purchases at a
medical marijuana dispensary and voila! He’s caught himself a kingpin.
(Listing the same “crime”–selling marijuana–over and over during the
length of an investigation lets police astronomically increase the bail
bond amount and pile on felonies, including conspiracy charges, setting
up dispensary owners as “kingpins.”)

In court, the prosecutor—for the People—determines
the charges, some of which come with automatic mandatory minimum
sentences. “Mandatory minimums” were enacted by Congress in 1986 during
the Reagan/Bush administration. Part of a bi-partisan effort to get
tough on drugs after up-and-coming Celtics basketball star Len Bias died
of a cocaine overdose, mandatory minimum sentencing was intended to
stop international drug cartels from trafficking.

The idea that
some street-level dealer serving a long prison sentence would deter his
criminal “kingpin” employer would be laughable if so many law abiding
growers and dispensary owners weren’t getting caught in the dragnet. But
beyond the fact that this policy was based on magical thinking, by
taking sentencing control away from judges and giving it to prosecutors,
it also stopped judges from judging. Thanks to mandatory minimums, a
judge no longer gets to decide whether the punishment fits the crime.

Injustice, Enhanced

While
judges sit on the bench with their hands tied, prosecutors run rampant
over the will of the people, even deciding whether a case is tried in
state or federal court, which, for a defendant, is virtually a
life-or-death decision. The federal prison population is now jam-packed
with low-level, nonviolent drug “offenders,” including medical marijuana
growers and dispensary owners. Having become involved with medical
marijuana in the first place because they were qualified patients,
growing numbers of them are suffering and even dying in custody without
medication.

Other than the actual drug cartels the conspiracy
laws were meant to stop, the prison industrial complex is one of the
only real winners in this twisted game of perverted justice. Thanks to
the insane levels of power awarded to federal prosecutors via mandatory
minimums and other “enhanced” sentencing methods, many defense lawyers
advise their clients to accept a plea bargain (i.e. plead guilty to
lesser charges) rather than play Russian roulette with a jury trial
because the federal system is stacked against them.

“Fuck the Feds”

"The United States Attorneys Office ... will vigorously prosecute individuals and organizations that participate in the unlawful manufacturing, distribution and marketing activity involving marijuana, even if such activities are permitted under state law."

~United States Attorney John Walsh, May 2, 2011

In
Stanislaus County, Luke Scarmazzo and Richard (Ricardo) Montes were
medical marijuana patients who decided to open a dispensary in the
central valley because they, like many local patients, had to travel
over a hundred miles to get their meds. And because it looked like a
damn good way to make a living. In 2004, after complying with state
regulations, they opened the California Healthcare Collective (CHC).
Their first day of operation earned them a headline in the local
newspaper: “Pot Dispensary in Modesto.”

“When I arrived at
work the next morning, there was a line of people waiting at the door,”
wrote Scarmazzo in a letter originally published in Prison Outreach Press. “The line was so long it looked as if a blockbuster movie was premiering inside our building.”

Instant
success inspired them to intensify their efforts to comply with the
law. Security personnel examined patients’ state ID cards. CHC contacted
doctors’ offices to verify every recommendation. They hired an attorney
and paid taxes, despite the attorney’s legal interpretation that
cannabis as medicine ought to be exempt from taxation. “We thought we
had appeased everyone,” he wrote.

The Modesto Police
Department and City Council thought differently. They began taking steps
to ban dispensaries within city limits. Scarmazzo and Montes hired a
land-use attorney and attended a series of meetings with the city
council. “On each occasion, the outpouring of community support was
overwhelming,” wrote Scarmazzo. “The council sensed that they were
fighting a losing battle and finally, after months of litigation,
conceded. We were exhilarated.”

Their triumph was short-lived.
Twenty-four hours before their final meeting with the city council, in
the pre-dawn hours, the Federal Drug Enforcement Agency (DEA) sent in
storm troopers. At gun-point, they raided and arrested Luke, Richard,
and all the employees of California Healthcare Collective. Federal
prosecutor Kathleen Servatius charged the two men with conducting a
continuing criminal enterprise—a
“kingpin” charge originally intended for crack-cocaine drug-lords and
international cartels–and which carries a mandatory prison sentence of
twenty years to life.

“We were unnerved by [the prospect of]
such an intimidating sentence, but I knew we had followed the letter of
California law completely and committed no crime,” wrote Scarmazzo. With
that in mind, he and Montes turned down a ten-year plea deal and chose
instead to put their fate in the hands of a jury.

Business Man by Kraz

During
the trial, the Court did not permit them to present the defense that
they ran a state-approved dispensary. By order of the judge, Scarmazzo
and Montes couldn’t so much as whisper the words medical marijuana or state law.
Their attorneys pleaded with the judge and prosecutor to allow them to
tell their side of the story, to no avail. Despite the defendants’ sworn
oath to tell the whole truth, they were systematically denied that right by the judge himself.

The
prosecutor, on the other hand, was permitted during her closing
arguments to play a music video entitled “Business Man.” The YouTube
video depicts Luke, performing as hip-hop artist Kraz, rapping about
marijuana, cash, weapons and women. The catchy refrain, “Fuck the
Feds!,” did not help his cause. In fact, a case could be made that Luke
is doing time for making bad art–within a month of the release of his
rap album, he was indicted by the feds.

Responding to Luke’s
assertion that he was being sent to federal prison over a rap video in
violation of his 1st Amendment right to free speech, prosecutor
Servatius wrapped up her argument, saying, “We don’t prosecute people
because they sing songs. We prosecute people because they sold marijuana
in violation of federal law.”

“The decision to take this case
to trial was political,” stated federal Judge Oliver W. Wanger. “Not on
the part of the government, but on the part of Mr. Scarmazzo.”

First Amendment Up in Smoke

In another federal case, Thomas B. Kin Chong, a/k/a Tommy Chong
of Cheech and Chong comedy duo fame, served nine months in federal
prison, allegedly for selling bongs on the Internet. After his son
Paris, who ran Chong Glass, was harangued into mailing a shipment of
bongs to a phony head shop in Pennsylvania, one of only two states in
the country to adhere to so-called bong laws, he was slapped with one
count of conspiracy to ship paraphernalia across state lines. “My arrest
for selling glass was political,” said Tommy Chong in an interview with
Sacred Cow productions inside California’s Taft Correctional
Institution. “I feel very honored. I put myself in the same category as
Martin Luther King, as Gandhi, as Lenny Bruce and Timothy Leary. We were
arrested for talking about an idea. The glass was just an excuse.”

Chong
had no prior convictions, didn’t mail the bongs himself, and didn’t run
the family business, although his face was on the product. Of all the
people rounded up in the feds’ “Operation Pipe Dreams,” he was the only
one to receive a prison sentence. Under threat of seeing his wife and
son face charges, he took a deal to serve nine months in federal prison.
In the film a/k/a Tommy Chong: United States of America v. Thomas B. Kin Chong
by Josh Gilbert, George W. Bush’s hand-picked federal prosecutor, Mary
Beth Buchanan, rationalized Chong’s over-the-top sentence by claiming he
got rich “trivializing law enforcement efforts to combat marijuana
trafficking and use” in the Cheech and Chong stoner classic, Up In Smoke.

Back in the early Eighties, when I read The Trials of Lenny Bruce
by Ronald Collins and David Skover, I came away with a single
conclusion: Once you start talking about legal cases, it’s just not
funny any more. Not that I’m trying to be funny. The point is, we need
to delve into some seriously unfunny legal matters if we are to
understand–and more importantly, reverse–a dangerous trend in our system
of justice, which is to say, a trend toward gross injustice.

Strands
of this malevolent web stretch back to the early Seventies and
President Richard M. Nixon. Nixon spawned the “War on Drugs,” which was
really a war on anti-war protesters, liberals and anyone else who got in
his way. “You see,” he said to White House Chief of Staff H. R. “Bob”
Haldeman on an Oval Office tape (May 13, 1971), “homosexuality, dope,
immorality in general: These are the enemies of strong societies. That’s
why the Communists and the left-wingers are pushing the stuff. They’re
trying to destroy us.”

[For more information on Nixon’s War on Drugs, read Johnston’s War Without End.]

The Controlled Substances Act (CSA), which Nixon signed into law on
October 27, 1970, created five “schedules” for regulating drugs based on
medicinal value and potential for addiction. Marijuana was listed as a
Schedule I drug with no medicinal benefit and a high potential for
abuse. The following year, Nixon created the National Commission on
Marijuana and Drug Abuse, known as the Shafer Commission, after “law and
order” Governor Raymond P. Shafer of Pennsylvania, whom Nixon
personally appointed to head it up.

In
a surprise move, the Shafer Commission, after conducting the most
comprehensive study of marijuana in American history, wound up
recommending that possession and non-profit transfer of marijuana be
decriminalized, stating, in part, that the actual and potential harm
from using marijuana “is not great enough to justify intrusion by the
criminal law into private behavior, a step which our society takes only
with the greatest reluctance.” President Nixon did not share that reluctance. His reaction was to declare “all out war, on all fronts” against marijuana.

In
1973, having declared drug abuse Public Enemy #1, President Nixon
established the Drug Enforcement Agency. The DEA currently has a
presence in virtually every country in the world, although increasing
numbers of governments and the United Nations have begun to question the
efficacy of the so-called War on Drugs.

The More Things Change, the More They Stay the Same

In the eye of the federal government, there’s only one type of marijuana. And marijuana is a Schedule I controlled [federally prohibited] substance.

~ Office of U.S. Attorney John Walsh, May 2011

In 2012, two states, Colorado and Washington, voted to legalize
marijuana for recreational use. As of June, 2013, with Maryland joining
their ranks, eighteen other states and the District of Columbia have
voted to legalize medical marijuana, placing them all at odds with a
federal government that seems to care nothing for the will of the
people. Nixon’s legacy of running a war on drugs continues unabated from
six feet under.

And
his bony reach from the grave seems to have President Obama by the
throat, because in 2011 Obama said he was not planning to end the war on
drugs any time soon.

Despite Obama’s 2008
campaign promise to lighten up on marijuana prosecutions, and Deputy
Attorney General David Ogden’s 2009 memo (referred to as the “Ogden
Memo”) to U.S. Attorneys instructing them not to focus federal resources
on “individuals whose actions are in clear and unambiguous compliance
with existing state laws providing for the medical use of marijuana,” federal attorneys in the Obama administration have taken a disturbingly hard-line position.

Indeed,
President Obama has put more medical marijuana patients in prison than
any other president in history. “Far surpassing his predecessor George
W. Bush, President Obama has conducted more than 200 SWAT-style raids on
state-compliant medical marijuana businesses and has indicted more than
80 people since he took office,” stated Kris Hermes, spokesperson for
Americans for Safe Access, on January 4, 2013. “The number of sick
patients being locked up by the Obama Administration is unprecedented
and deplorable.”

In a worst-case example, Montana's first registered caregiver Richard Flor died in federal custody at a private prison facility in Las Vegas, Nevada on August 30, 2012.
After suffering two heart attacks and organ failure, Flor was placed on
life support while still shackled to his bed, according to his lawyer.
His friend Montana marijuana patient advocate Tom Daubert wrote in West Coast Leaf,
"Twenty minutes after Flor died, federal marshals unlocked the shackles
on his ankles, placed there despite the fact that Flor had long before
lost the ability even to walk."

On September 25, 2012,
according to California NORML, “federal authorities took legal action
against 71 medical marijuana dispensaries in Los Angeles County,
including all known collectives in downtown and Eagle Rock as part of an
ongoing campaign to crack down on medical marijuana.” The same thing is
going on all over the state, but lest this blog become a litany of
federal travesty, California NORML keeps a running account of “notable examples” at CANORML.org.

In one such case, on September 27, 2012, “150 agents from US Homeland
Security (!), FBI, DEA, CHP and Sonoma sheriff's deputies wearing
military garb and accompanied by an armored military vehicle stormed
from house to house, pulling up backyard gardens, in an impoverished
section of Santa Rosa.”

In addition to mass arrests
of patients and providers, the federal government has sent letters to
landlords who rent to medical cannabis collectives, threatening them
with asset forfeiture and criminal charges. In states like Washington,
Rhode Island, Arizona and Hawaii, U. S. attorneys have threatened local
elected officials with criminal prosecution should they try to regulate
medical marijuana dispensaries. At least one dispensary owner in
California, on top of being arrested for marijuana possession and
distribution, was later hit with federal money laundering charges. And
the largest dispensary in the state, if not the world, Harborside Health
Center in Oakland, was slammed with $2.4 million dollars in back taxes,
in effect, putting them out of business.

California NORML
Director Dale Gieringer, Ph.D., says, "The DOJ's real agenda is to try
to destroy the most successful leaders in the medical cannabis industry
because they prove that lawful access to cannabis works, contrary to
the government's bankrupt policy of prohibition."

All illegal drugs are bad.

~ DEA administrator Michele Leonhart

On July 8, 2011, the United States Court of Appeals for the District
of Columbia Circuit denied a nine-year-old request by the Coalition for
Rescheduling Cannabis to have marijuana removed from Schedule I of the
Controlled Substances Act (CSA) and rescheduled as cannabis in Schedule
III, IV or V.

However, in the wording of the Ogden Memo, quoted
earlier, by acknowledging existing state laws on medical marijuana, the
federal government has tacitly admitted marijuana does have a medical
use. That alone would seem to be grounds for rescheduling. But at
least, by coming down with a ruling, the Court opened the way for
Americans for Safe Access to appeal the decision. Finally, lawyers were
able to present the federal government with scientific evidence of
marijuana’s medicinal benefits. On October 16, 2012, oral arguments were
heard in the case Americans for Safe Access v. the Drug Enforcement Agency (DEA).

Disregarding
numerous scientific studies that have shown marijuana's medical
efficacy, the D.C. Circuit Court of Appeals denied the petition on
January 28, 2013, “deferring to the [DEA’s] interpretation of these
regulations [of the Controlled Substances Act],” maintaining marijuana’s
status as a Schedule I drug.

In order to be grounded, I've got to be crazy. And I must be crazy to keep flying. But if I ask to be grounded, that means I'm not crazy anymore, and I have to keep flying.

~ Yossarian, Catch-22 by Joseph Heller

Commenting on the Appeals Court decision, California NORML Director Dale Gieringer, Ph.D. stated,
“In its reply, the DEA claimed that it would only accept large-scale,
controlled FDA trials. In a Catch-22, however, the DEA has deliberately
blocked such trials by refusing to approve the licensing of a private
production facility to supply marijuana for medical research and
development at the University of Massachusetts. The only existing legal
source for research marijuana in the country is the National Institute
for Drug Abuse, which recently blocked a request to study marijuana for
treatment of PTSD and has said that it has no intention of developing its marijuana for medical use.” [Italics added for emphasis.]

Meanwhile, Back in the Gulag

Convict-writer Dannie Martin described Lompoc Penitentiary as a "caldron of fear, hatred and violence" in an article for The San Francisco Chronicle in
the late ‘eighties, accusing the warden of creating riot conditions.
Today, with the occasional report of gang violence, prison riots and
random stabbings leaking into the news, USP Lompoc is an overcrowded
hellhole. There you will find Federal Inmate Number 63131-097—the husband, father, son, businessman and artist formerly known as Luke Scarmazzo.

Because he was given a mandatory minimum sentence of twenty-one years
and eight months for his involvement in a “continuing criminal
enterprise,” he was classified as a maximum-security inmate. “I have
been condemned to wander this desert of solitude until I am a gray, old
man,” wrote Luke. “I will never give up hope that one day I will feel
the warm sunshine upon my face, smell the sweet fragrance of freedom and
hear Jasmine’s voice softly whisper, ‘Welcome home, Daddy.’”

Meanwhile, back at the ranch, horses were being groomed in the Colorado
sunshine for a surprise father-daughter horseback entrance at my
cousin’s wedding. Flower girls laughed and talked while making bouquets
of long-stemmed red roses at a picnic table in the shade of an olive
tree.

As I brushed tangles out of a horse’s mane, I thought
about Luke Scarmazzo’s little girls, growing up without their father. I
know from experience what it’s like when Daddy goes away. The reason
doesn’t matter. Only the absence does.

Luke Scarmazzo is one of a
burgeoning number of incarcerated Americans, snatched from their
families in the dark of night. The day he was arrested also happened to
be his daughter Jasmine’s fourth birthday. She and her mother, DeVina,
were waiting for him at a hotel in Disneyland. He was scheduled to catch
the noon flight to Los Angeles after meeting with the city council. “I
never made that flight and I never showed up for her birthday party.”

Instead
of celebrating his daughter’s birthday with Mickey Mouse, Luke
Scarmazzo was surrounded by men in black military fatigues, storming his
home with machine guns, “ripping me out of bed at barrel-point.”

When
the trial was over and the jury found out how much time he and Richard
Montes were going to serve, several jurors begged the judge to dismiss
the verdict. The judge was unmoved. Or maybe he was just immobilized by
mandatory minimums.

Some jurors filed affidavits, recanting
their verdicts. That became part of an appeal to the 9th Circuit
Appellate Court. “We felt sure they would correct this injustice and
overturn our egregious sentences,” wrote Scarmazzo. “I was certain we
would return home and be reunited with our families. I was wrong.”

Back
from working all day in the prison commissary warehouse and anxious to
return to his “cold, cramped cell,” Scarmazzo noticed his name on the
mail distribution list. He eagerly opened a letter from his brother
Nick.

“Bro, sorry to hear about the news,” wrote Nick, who went
on to tell him that the 9th Circuit Court of Appeals had affirmed their
convictions.

“I was devastated. My attorney had not even
contacted me with the news,” he wrote. “Worse than hearing the judge’s
gavel slam when the guilty verdict was read aloud, this feeling had much
more permanence and finality. Like a heavy mallet, the thought hammers
me that the next twenty years of my life could likely pass through these
dreary, interchangeable prison cages…”

Ironically, on May 24,
2013, Eduardo Arellano Felix of the brutal Arrellano Felix organization,
a/k/a the Tijuana cartel, who smuggled hundreds of tons of cocaine and
marijuana into California, took a deal and plead guilty to money
laundering and conspiracy, and is awaiting sentencing. Federal
prosecutors are recommending 15 years, almost six years less than Luke
Scarmazzo, who operated a medical marijuana dispensary according to
state law.

Irony of Ironies

In addition to the United States Penitentiary at Lompoc, there’s an
adjacent prison camp that once housed minimum security male inmates.
This is where White House Chief of Staff H. R. “Bob” Haldeman served
time as a convicted felon after the Watergate scandal forced President
Nixon to resign in 1974.

Nixon’s
personal attorney, Herbert Kalmbach also checked into USP Lompoc after
admitting to illegally soliciting $3.9 million in campaign donations.

But Lompoc is not “Club Fed” any more. In 1990 the prison camp was
upgraded from minimum security Lompoc Federal Prison Camp to Lompoc
Federal Correctional Institution to create space for more prisoners,
mostly drug “offenders,” serving longer, mandatory sentences. As of
January, 2013, sixty percent of prisoners at Lompoc FCI were serving
time for drug “offenses.” According to the Lompoc Record, the Lompoc Federal Correctional Complex currently houses over 3,300 inmates in facilities that were designed for 2,200.

While
Tommy Chong was a federal inmate, he confided to Sacred Cow
Productions, “I’m the resident celebrity.” Interviewed in a holding
cell, he talked about life behind bars, which is no fun, even for a
funny man. But he brightened when he said, “I spend a lot of time
taking pictures with inmates, which I love. I get a lot of mail and I
love that, too! I love hearing the C.O. call my name. Chong! Chong!
Chong! I love that!”

Sending a letter to a prisoner is like
shining a light into a very dark corner. Tommy Chong is free now, but
you can write to Luke Scarmazzo at:

Cynthia
Johnston began writing about her experience as a medical marijuana
patient as soon as she “got legal.” She went public on behalf of
legalization in 1980 with the California Marijuana Initiative and a
headline: “Marijuana Protester Busted at High Noon.” Johnston
published her first blog before blogging was a word. A subsequent online
journal earned her the opportunity to write a piece, “Mobile Homeless,”
for The San Francisco Chronicle. She’s been blogging ever since.

Comments

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